In 2009, the New Jersey Legislature authorized the possession and use of small amounts of marijuana for medical purposes with a doctor’s prescription. Federal law, however, still classifies marijuana as a controlled substance with no recognized medical use. This has led to considerable uncertainty in the area of employment law, such as whether states that allow medical marijuana use also protect workers against discrimination based on drug use that, while legal under state law, still violates federal law. So far, no New Jersey court has found that state antidiscrimination law covers lawful medical marijuana use, but at least one such claim is currently pending in state court. The defendant in that lawsuit is arguing that the federal Controlled Substances Act (CSA) preempts any state laws addressing employment discrimination claims. A federal court in Connecticut recently rejected a similar argument in Noffsinger v. SSC Niantic Operation Company, No. 3:16-cv-01938, ruling (D. Conn., Aug. 8, 2017). While this ruling does not directly affect New Jersey courts, it could have an impact on future cases.
The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., establishes procedures for medical professionals to prescribe marijuana. It also exempts qualifying medical professionals and their patients from liability under the state’s criminal and civil laws dealing with marijuana. Id. at §§ 2C:35-18, 24:6I-6. It does not specifically mention employment. A pair of bills introduced in the New Jersey Legislature, A2482 and S2161, would add specific employment protections for medical marijuana patients, but they have never received hearings.
Under the Supremacy Clause of the U.S. Constitution, federal law generally takes precedence over conflicting state laws. The CSA’s classification of marijuana as a Schedule I controlled substance, 21 U.S.C. § 812(c)(I)(c)(10), has caused much confusion in this regard. Preemption by federal law is a major part of the defendant’s argument in a lawsuit filed by a medical marijuana patient alleging violations of the New Jersey Law Against Discrimination (NJLAD). Wild v. Carriage Services, No. L-000687-17, complaint (N.J. Super. Ct., Bergen Cty., Jan. 30, 2017). In a motion to dismiss filed in February 2017, the defendant in Wild argues that the NJCUMMA directly conflicts with the CSA. Courts have dismissed several similar lawsuits recently on procedural grounds that do not address the merits of the medical marijuana claims. See Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017); Wiltshire v. Breunig, et al, No. L-000052-16, complaint (N.J. Super. Ct., Cape May Cty., Feb. 5, 2016).
Unlike the NJCUMMA, Connecticut’s Palliative Use of Marijuana Act (PUMA) specifically provides that employers may not discriminate against a person because of their lawful use of medical marijuana, “unless required by federal law or required to obtain federal funding.” Conn. Gen. Stat. § 21a-408(b). The plaintiff in Noffsinger had a prescription for medical marijuana to treat post-traumatic stress disorder. The defendant rescinded an offer of employment after a positive drug test. The plaintiff sued under PUMA’s antidiscrimination provisions, which currently would not be an option under New Jersey law. The court’s ruling that PUMA is not preempted by the CSA or other federal statutes, however, could be good news for New Jersey if a bill like A2482 or S2161 passes.
If you are involved in a dispute with an employer in New Jersey or New York, contact the knowledgeable and experienced disability discrimination lawyers at the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
How Medical Marijuana Is Affecting Employment Discrimination Laws in New Jersey and Around the Country, The New Jersey Employment Law Firm Blog, August 31, 2017
New Jersey Discrimination Lawsuit Tests Effect of Medical Marijuana Law on Employment Statutes, The New Jersey Employment Law Firm Blog, June 24, 2015
Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court, The New Jersey Employment Law Firm Blog, May 13, 2014